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Gravity of the offence

313. The Appeals Chamber reiterates that, when assessing the gravity of a crime in the context of a conviction under Article 7(3) of the Statute, two matters must be taken into account:

(1) the gravity of the underlying crime committed by the convicted person’s subordinate; and

(2) the gravity of the convicted person’s own conduct in failing to prevent or punish the underlying crimes.[1]

Thus, in the context of a conviction under Article 7(3) of the Statute, the gravity of a subordinate’s crime remains, contrary to Hadžihasanović’s assertion, an “essential consideration” in assessing the gravity of the superior’s own conduct at sentencing.[2]

[1] Čelebići Appeal Judgement, para. 732 (emphasis added). See also para. 741 (“a consideration of the gravity of offences committed under Article 7(3) of the Statute involves, in addition to a consideration of the gravity of the conduct of the superior, a consideration of the seriousness of the underlying crimes” (emphasis added).

320. […] the Appeals Chamber holds, proprio motu, Judge Liu dissenting, that the Trial Chamber erred when it assessed the gravity of the offence in light of its finding that “the manner in which Simba participated in the joint criminal enterprise did not evidence any particular zeal or sadism.”[1] The Appeals Chamber notes that the aforementioned factors are neither elements of the crime of genocide or extermination nor factors indicating the gravity of the crimes as such. The Appeals Chamber raises this issue proprio motu in order to clarify that zeal and sadism are factors to be considered, where appropriate, as aggravating factors rather than in the assessment of the gravity of an offence. Nonetheless, given the fact that the Appeals Chamber has already rejected the Prosecution’s claim that the Trial Chamber erred in not taking into account the Appellant’s sadism and zeal in aggravation on procedural grounds in the preceding paragraph, this error can not have any impact upon the Appellant’s sentence.

185. The Appeals Chamber recalls that the determination of the gravity of the crime requires consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crimes. […]

591. The Appeals Chamber holds the view that a penalty must reflect the totality of the crimes committed by a person and be proportionate to both the seriousness of the crimes committed and the degree of participation of the person convicted. The gravity of the crime is a key factor that the Trial Chamber considers in determining the sentence.[1] […]

1060. […] Furthermore, although there is no pre-established hierarchy between crimes within the jurisdiction of the Tribunal,[1] and international criminal law does not formally identify categories of offences, it is obvious that, in concrete terms, some criminal behaviours are more serious than others. As recalled above, the effective gravity of the offences committed is the deciding factor in the determination of the sentence:[2] the principle of gradation or hierarchy in sentencing requires that the longest sentences be reserved for the most serious offences.[3] […]

69. The Appeals Chamber has taken account of the arguments of the parties and the authorities to which they refer, inclusive of previous judgments of the Trial Chambers and the Appeals Chamber of the International Tribunal. After full consideration, the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case. […]

See also at pp. 35-56 the Separate Opinions of Judge Shahabuddeen and Judge Cassese

280. The Appeals Chamber recalls that the well-established principle of gradation in sentencing holds that leaders and planners should bear heavier criminal responsibility than those further down the scale, subject to the proviso that the gravity of the offence is the primary consideration for a trial chamber in imposing a sentence.[1] Thus, although Kanyarukiga was convicted as a planner, the primary consideration remained the gravity of his offences.

281. The determination of the gravity of the offence requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime. The Appeals Chamber notes that the Trial Chamber expressly considered the very serious nature of the crimes committed, their scale, and the fact that Kanyarukiga participated in planning them.[3] In particular, the Trial Chamber observed that the destruction of the Nyange church on 16 April 1994 resulted in the deaths of over 2,000 Tutsi civilians and that the crimes “were grave and resulted in overwhelming human suffering”.[4]

1837. At the outset, the Appeals Chamber notes that the Prosecution’s appeal focuses on the failure to individualise sentences based on the gravity component.[1] The Appeals Chamber recalls that trial chambers have an “overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime, with due regard to the entirety of the case”.[2] Thus, gravity is not considered in isolation, but in conjunction with aggravating, mitigating, and other factors in determining the sentence.

99. The Appeals Chamber considers, Judges Robinson and Güney dissenting, that the Trial Chamber properly considered the particular circumstances surrounding Nshogoza’s specific conduct. The Trial Chamber did not merely focus on contempt as an inherently grave offence, but addressed the gravity of the particular way in which Nshogoza committed contempt. It found that, by breaching the Kamuhanda Protective Measures Order, Nshogoza “undermined the authority of the Kamuhanda Trial Chamber, as well as confidence in the effectiveness of protective measures, and the administration of justice.”[1] The Trial Chamber did not merely focus on Nshogoza’s defiance of the authority of the Tribunal, but considered more specifically that his conduct “may also have the effect of dissuading witnesses from testifying before it.”[2] The Appeals Chamber does not deem that it was necessary for the Trial Chamber to have found that Witnesses GAA and A7/GEX lost confidence in their protective measures or that other witnesses were dissuaded from appearing before the Tribunal for it to consider that a breach of a protective measures order may have the effect of dissuading witnesses from testifying before the Tribunal.

302. The Appeals Chamber recalls that the sentence must reflect the gravity of the offences.[1] The determination of the gravity of the offences requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime. Further, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates, i.e. the gravity of the crimes committed by the direct perpetrator(s).[3]

303. Regarding Ntabakuze’s degree of responsibility by virtue of his conviction pursuant to Article 6(3) of the Statute, the Appeals Chamber observes that the Statute does not accord any “lesser” form of individual criminal responsibility to superior responsibility. While the Appeals Chamber also acknowledges that, in appropriate cases, a conviction under Article 6(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 6(1) conviction,[4] it reiterates its view that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute.[5] The Appeals Chamber also recalls the well-established principle of gradation in sentencing, which holds that leaders and planners should bear heavier criminal responsibility than those further down the scale.[6]

305. In light of the foregoing, the Appeals Chamber finds no abuse of discretion in the Trial Chamber’s holding that the gravity of the crimes committed by Ntabakuze warranted similar treatment to those who planned or ordered atrocities as well as the most senior authorities.[7] In the same vein, the fact that Ntabakuze was the first person before the Tribunal to be sentenced to life imprisonment solely based on superior responsibility does not have any bearing on the reasonableness of the Trial Chamber’s findings on the matter. The Appeals Chamber emphasises that a sentence of life imprisonment is provided for in Rule 101(A) of the Rules irrespective of the mode of liability of which an accused is convicted. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

236. The Appeals Chamber considers that Ntawukulilyayo’s participation in the Kabuye hill massacre constituted his culpable conduct and the fact that he was not found guilty of other crimes or that his criminal conduct was limited in time did not reduce that culpability. […]

182. […] Consideration of the gravity of the conduct of the accused is normally the starting point for consideration of an appropriate sentence. The practice of the International Tribunal provides no exception. The Statute provides that in imposing sentence the Trial Chambers should take into account such factors as the gravity of the offence.[1] This has been followed by Trial Chambers. Thus, in the ^elebi}i Judgement, the Trial Chamber said that “[t]he most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence”.[2] In the Kupreški} Judgement, the Trial Chamber stated that “[t]he sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime”.[3] The Appeals Chamber endorses these statements.

145. The Appellant contends that the crime of direct and public incitement to commit genocide, whilst a “serious offence”, cannot be considered as a crime of similar gravity to genocide, since, unlike the crime of genocide, it is an inchoate offence.[1] The Appeals Chamber disagrees. There is no hierarchy of crimes within the jurisdiction of the Tribunal.[2] […]

146. […] [T]he analysis in the Nahimana et al. Appeal Judgement in fact supports the proposition that the offence of direct and public incitement to commit genocide is, in and of itself, a serious offence warranting serious punishment, notwithstanding that no physical act of genocide may have been committed. It does not indicate any hierarchy between the two offences. […]

148. The Appeals Chamber reiterates that whilst a Trial Chamber is obliged to take into account the general sentencing practice in Rwanda, it is not obliged to follow it.[3] The Appeals Chamber notes that although it would appear that Rwandan law does not make direct and public incitement to commit genocide a separate offence, it nevertheless criminalizes genocide[4] and provides that the act of, inter alia, “incitement, by way of speech, image or writing, to commits [sic] such a crime, even where not followed by an execution” shall be punishable by penalties provided for under that law.[5]

[4] See, e.g., Organic Law No. 33bis/2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes, of 6 September 2003 (“Organic Law No. 33bis/2003”), Article 2.

[5] See Organic Law No. 33bis/2003, Article 17(3). The Appeals Chamber observes that whilst it would have been preferable for the Trial Chamber to also refer to Organic Law No. 33bis/2003 in its discussion on the Rwandan law relating to the offence of genocide, its failure to do so does not impact the validity of the Trial Chamber’s overall assessment of Rwanda’s sentencing practice.

745. Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count. Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).[1] The Aleksovski Appeal Judgement has recognised both such matters as being factors which should result in an increased or aggravated sentence. […]

[1] This observation applies only if the two types of responsibility are not independently charged under different counts, with separate sentences imposed on each. A different situation may arise of two separate counts against an accused, one alleging Article 7(1) responsibility for direct or accessory participation in a particular criminal incident, and another alleging Article 7(3) responsibility for failure to prevent or punish subordinates for their role in the same incident. If convictions and sentences are entered on both counts, it would not be open to aggravate the sentence on the Article 7(3) charge on the basis of the additional direct participation, nor the sentence on the Article 7(1) charge on the basis of the accused’s position of authority, as to do so would impermissibly duplicate the penalty imposed on the basis of the same conduct.

732. […] As a practical matter, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates. A failure to prevent or punish murder or torture committed by a subordinate must be regarded as being of greater gravity than a failure to prevent or punish an act of plunder, for example.[1]

See also paragraph 741.

735. It would be incorrect to state that, as a matter of law, responsibility for criminal conduct as a superior is less grave than responsibility as the subordinate perpetrator. […]

[1] Mucić contends that the Prosecution’s approach indicates that it mischaracterises the offences of a superior as being the “same crime” as that of the subordinate upon which the superior’s offence is based: [Čelebići Case, Response of the Appellant Zdravko Mucić to the Prosecution’s Fourth Ground of Appeal Brief, 17 Sep 1999], para 10. The Prosecution Brief does contain some references which could be understood in this way: e.g., para 5.24. The Appeals Chamber’s conclusion, however, is not based on any such reasoning but simply recognises the inevitable relationship between the gravity of the superior’s failure to prevent or punish criminal conduct and the criminal conduct to which that failure relates.

The Appeals Chamber proceeded to analyse first whether crimes against humanity attract harsher penalties than war crimes and second whether crimes resulting in loss of life are to be punished more severely than other crimes.

241. […] the Appellant relies on, inter alia, certain decisions of this Tribunal.[1] In particular, he draws attention to the judgement of the Appeals Chamber in the Erdemović case in which the majority of the Appeals Chamber found that crimes against humanity should attract a harsher penalty than war crimes.[2]

242. This Chamber notes that, when the Appellant’s Amended Brief was filed on 14 September 1999, the Judgement of the Appeals Chamber in the Tadić Sentencing Appeals Judgement was yet to be delivered.[3] In this latter case, the Chamber considered the case law now relied upon by the Appellant, but reached a conclusion, by majority, contrary to that which the Appellant now advocates:

[T]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.[4]

243. This Chamber notes that the same arguments now advanced by the Appellant were considered and rejected by the Appeals Chamber in the Tadić Sentencing Appeals Judgement. The question arises whether this Chamber should follow the ratio decidendi on this issue set out in that Judgement. In the recent Aleksovski Appeals Judgement the Appeals Chamber held that:

[w]here, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.[5]

The Appeals Chamber will follow its decision in the Tadić Sentencing Appeals Judgement on the question of relative gravity as between crimes against humanity and war crimes.

The Appeals Chamber also concluded:

246. […] The Appeals Chamber considers [the view that crimes resulting in loss of life are to be punished more severely than those not leading to the loss of life] to be too rigid and mechanistic.

247. Since the Tadić Sentencing Appeals Judgement, the position of the Appeals Chamber has been that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter. It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes.

[3] Although the Tadić Sentencing Appeal Judgement was pronounced prior to the oral hearings in this case, counsel for the Appellant did not change this line of argument.

[4] Tadić Sentencing Appeals Judgement, para. 69 (emphasis added). Further argument in support of this view was set out in the Separate Opinion of Judge Shahabuddeen in that same judgement. SeealsoProsecutor v. Duško Tadić, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov. 1999, Separate Opinion of Judge Robinson, in which Judge Robinson expressed the view that there is no basis for “the conclusion that, as a matter of principle, crimes against humanity are more serious violations of international humanitarian law than war crimes” (ibid., p.10) and Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li, in which Judge Li stated “that the gravity of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another”. Ibid., para. 19.

249. In deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness. While acts of cruelty that fall within the meaning of Article 3 of the Statute will, by definition, be serious, some will be more serious than others. […]

381. In Tadić, the Appeals Chamber of ICTY also considered the relative position of a convicted person in a command structure to be a relevant factor in determining sentence. In that case, the Appeals Chamber considered that, while Tadic’s criminal conduct was “incontestably heinous”, his level in the command structure in comparison to his superiors was low”,[1] and consequently, the sentence passed by the Trial Chamber was excessive.[2] In subsequent ICTY Appeals Chamber decisions, the need to establish a gradation of sentencing has been endorsed.[3] In the Čelebići appeal, the Appeals Chamber held that:

[e]stablishing a gradation does not entail a low sentence for all those in a low level of the overall command structure. On the contrary, a sentence must always reflect the inherent level of gravity of a crime … the gravity of the crime may be so great that even following consideration of any mitigating factors, and despite the fact that the accused was not senior in the so-called overall command structure, a very severe penalty is nevertheless justified.[4]

382. It went on to state that “while the Appeals Chamber has determined that it is important to establish a gradation in sentencing, this does not detract from the finding that it is as essential that a sentence take into account all the circumstances of an individual case”.[5] It follows that the jurisprudence of ICTY acknowledges the existence of a general principle that sentences should be graduated, that is, that the most senior levels of the command structure should attract the severest sentences, with less severe sentences for those lower down the structure. This principle is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence.[6]

383. As to whether this principle should be applicable to the Trial Chambers of this Tribunal, as a general principle, this Appeals Chamber agrees with the jurisprudence of ICTY that the most senior members of a command structure, that is, the leaders and planners of a particular conflict, should bear heavier criminal responsibility than those lower down the scale, such as the foot soldiers carrying out the orders. But this principle is always subject to the crucial proviso that the gravity of the offence is the primary consideration of a Trial Chamber in imposing sentence; if the offence is serious enough, a Trial Chamber should not be precluded from imposing a severe penalty upon the accused, just because he is not at a high level of command.

151. […] The Appeals Chamber reiterates that the Trial Chamber is only obliged to have regard to the gravity of the crimes for which an accused has been convicted, and the form or degree of responsibility for these crimes. […]

367. […] The Appeals Chamber remarks that there is no hierarchy of crimes under the Statute, and that all of the crimes specified therein are “serious violations of international humanitarian law”,[1] capable of attracting the same sentence. The actual sentence imposed depends, of course, upon the evaluation of the various factors referred to in the Statute and the Rules. The Appeals Chamber finds that the Trial Chamber’s description of genocide as the “crime of crimes” was at the level of general appreciation, and did not impact on the sentence it imposed. Furthermore, upon examining the statements of the Trial Chamber, it is evident that the primary thrust of its finding as to the gravity of the offences relates to the fact that genocide in itself is a crime that is extremely grave. Such an observation is correct, and for these reasons, there was no error in its finding on this point.

3449. The Appeals Chamber observes that the gravity of the crime of direct and public incitement to commit genocide derives from that of the crime of genocide, a crime of the most serious gravity.[1] The Trial Chamber found that Nteziryayo committed direct and public incitement to commit genocide on three separate occasions.[2] Accordingly, the Appeals Chamber considers that, regardless of whether or not deaths resulted from his statements, the imposition of a sentence of 30 years of imprisonment was not beyond the Trial Chamber’s sentencing discretion.